Crisis Threatens Liberties

September 16, 2001|By Terri Somers Staff Writer

The United States' record on civil liberties in times of crisis portends a blow to Americans' civil liberties in the wake of last week's terrorist attacks, civil libertarians and other legal experts say.

They point to President Abraham Lincoln's suspension of habeas corpus during the Civil War, the World War II internment of Japanese-Americans and McCarthyism during the Cold War. All were at first supported by the U.S. Supreme Court, though when each crisis subsided, the court changed its mind in response to public outcry.

With every national security crisis, the nation rushes to react with measures that infringe on individual freedom, said Gary Gershman, a constitutional law expert at Nova Southeastern University.

President Bush on Saturday prepared to sign a law, approved overwhelmingly by Congress, giving him new authority to conduct a broad international campaign against terrorism.

An existing anti-terrorism law, passed in the wake of the Oklahoma City bombing, has been criticized by lawyers who say it infringes on constitutional rights yet provides little real protection against terrorism. There has been a push to repeal some of its tougher elements.

Now politicians and policy-makers are considering legislation that would extend the powers of the CIA and expand the use of wiretaps. They have resurrected a proposal to toughen penalties for leaking government intelligence.

Those measures would require new legislation, and while they might be placed on a fast track, the process still takes time and requires debate. But the changes felt most immediately by Americans will not necessarily require new laws, experts said.

"We'll use our same standards, use the same words, but the flexibility will lie in the execution," said Mary Cheh, a constitutional law expert at George Washington University in Washington, D.C.

For instance, the Fourth Amendment promises Americans protection against unreasonable search and seizure. But in the wake of terrorist attacks on the World Trade Center and the Pentagon, the definition of "unreasonable" changes.

"To put it in stark terms, did racial profiling become appropriate at 8:45 a.m. Tuesday?" asked Steve Wermiel, a constitutional law expert at American University's law school. "Is it now OK for law enforcement to stop someone because they look Arab or Muslim?"

That would be punishing those who fit a profile but aren't guilty of any crime, according to Wermiel. "I think this is a major concern, and I don't hear our national leaders saying enough about the need to protect against that," he said.

Also, if sky marshals are put on planes, what are the standards they will use to identify suspicious behavior?

"If you ask for a knife to cut your chicken, is that reasonable suspicion for a sky marshal to bring you to the back of the plane for questioning or a search?" Wermiel asked.

Are Americans ready to deal with other possible measures, such as carrying a national identification card? These measures infringe on Americans' cherished right to be left alone, experts said.

"In times of crisis, national security becomes this hammer by which government can beat back terrorist opportunity, and it excuses many actions previously seen as unacceptable," said Charles Zelden, a constitutional historian at NSU's law school.

The problem is inherent in the government's design, he said.

"This nation was formed with two conflicting goals: to provide order, peace, security and stability, while also protecting the liberties for which we fought the revolution," said Zelden. "While they're not completely exclusive, achieving stability often comes at the expense of our freedoms. It's a balancing act."

Like other legal experts, Zelden hopes that in the country's current and understandable mood of hyper-patriotism, there is no rush to relinquish personal freedoms unnecessarily. He recalled President Lincoln's words to the South during his first inaugural address, when the nation was ripping apart at the seams:

"Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it."

After taking his time and thinking about what he should do during the Civil War, Lincoln suspended the writ of habeas corpus, allowing jailing without charges. Lincoln, a scholar of the U.S. Constitution, reasoned that it could stretch and spring back again, said Zelden. One right could be violated to protect the greater good.